27 F. 787 -

27 F1d 787

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Case Text

DOSTER V. SCULLY.

787

prior to this time. That fact was known to Mr. Doster. If a full statement of the facts was presented to him, it is not to be presumed that a lawyer of his intelligence and familiarity with decisions of the supreme court would have given advice to the contrary·. Further, he had himself, in the Marion county district court, a year or two previous to this time, contested successfully for the same determination. It was a matter, therefore, with which he was familiar; and, unless you impute to him intentional wrong in the matter, it can hardly be supposed possible that, with all the facts presented to him in reference to that title, he could have given the advice which Mr. Koehnle says he did give. Still further, the mortgage was acknowledged by the husband on the twentieth of February, three days before the attachment; by the wife, on the 24th; and it is more than possible that the parties relied upon the date of such acknowledgment as well as upon the' recording after the levy. The whole series of the correspondence between the parties is here. Thereafter Mr. Doster acted for Mr. Scully in various matters, and there are several passages which seem to carry the idea that Mr. Scully was looking to Mr. Doster as his general counsel. It isconceded, however, by Mr. Koehnle, that up to this time there was no relationship of counsel and client; and when he says that he showed him no abstract, and that Mr. Doster seemed to talk as though he knew it all, and Mr. Doster affirms that he knew nothing about the matter, the only reasonable explanation, consistent with good faith and honesty on the part of the various parties, is that some such question as has been suggested was propounded. Mr. Koehnle may have said that the title was all right, except that a mortgage was filed after the levy; perhaps may have said that it was acknowledged after. Under those circumstances Mr. Doster's saying to him that the attachment was prior to the mortgage, only gave information which was correct, upon the facts presented. One other consideration should be noticed: Before a lawyer is punished by the enforcement of this strict rule, it should be made satisfactorily to appear that he did give information,-that he gave it as counsel, and npon facts presented to him fully and correctly by his client. Any general opinion as to the law, given by counsel upon a half statement of the facts by the client, ought not to prej udice the counsel. It is very evident that these gentlemen went to Marion county, not looking to Mr. Doster to protect their interests in all matters, believing themselves competent as real-estate men, and relying upon their own judgment; that they were in that business; and, before they can hold him to such a rigorous doctrme, it seems to me they should make it clear that they presented to him, as their counsel, th{l full facts, and got his opinion thereon. This is not proved. At least. it is probable, in my judgment, that nothing of .that kind took place; and, as the burden is upon them, their defense must fail.

788

FEDERAL REPORTER.

One other matter: There were tax-sale certificates outstanding, held by Mr. Edward Wilder, of Topeka. Mr. Doster was asked about these sales. He advised that they were illegal, because the taxes were excessIve. His advice was correct. After this land was purchased at the sheriff's sale Mr. Koehnle wrote to Mr. Doster to see if he could not buy the tax-sale certificates from Mr. Wilder, and thereafter get a deed; and he did so. I do not see that that prejudices Mr. Doster's right to foreclose this mortgage. The tax deed may be in form, but it is not yet protected by the statute of limitations. While the deed cannot stand as a deed to defeat this foreclosure, yet the tax lien has not been destroyed. The defendant was under no obligations to pay these taxes,-taxes which accrued prior to his purchase at the sheriff's sale. I think that the deed should be set aside, and the taxes adjudged a lien prior to the mortgage. So there will be a decree in favor of the plaintiff for foreclosure of the mortgage, giving a lien subsequent to these taxes. .

HARDT

v.

LIBERTY HILI, CONSOLIDATED MIN.

&

WATER CO.

and

others.

(Circuit Court, D. California. May 16, 1886.)
1.

INJUNCTION-MoDIFICATION OF ORDER-SERVICE OF PAPERS.

The rules and practice of the circuit court of the Ninth circuit, on an order to show cause why an injunction should not be modified, require copies of all the moving papers to be served with the order; anrl mere supporting affidavits cannot be filed in opposition to the affidavits showing cause, where the latter only controvert the moving affidavits, and do not set up any new affirmative matter constituting a defense.

2.

MINES AND MINING CLAIMS-MINING DEBRIS-IMPOUNDING DAMS.

No dam for impounding mining debris, erected in mountain rivers, should be held sufficient to protect riparian and other proprietors below, where the determination of their sufficiency rests upon the opinions of engineers, apparently equally intelligent, and those opinions are at variance; nor upon any evidence not flf the most unquestionable and satisfactory character. It is not the province of the court to speculate upon the sufficiency of means adopted by trespassers for the protection of parties trespassed upon, or the sufficiency of such means to resist the action of the forces of nature, where the data for a correct determination are uncertain and unreliable, and where an error in judgmp.nt is liable to work great injury to the latter.

8.

SAME.

In Equity. A. L. Rhodes and A. L. Hart, for complainant. James K. Byrne, for respondent. SAWYER, J. This is a suit similar to the somewhat noted Mining Debris Oase, 9 Sawy. 441, S. C. 18 Fed. Rep. 753, to enjoin defendants from discbarging the debris resulting from hydraulic mining into Bear river, by means of which it is carried down and deposited